What constitutes as a serious health condition under the FMLA?

Law provides multiple definitions, but employers should also consider court interpretations

Posted July 27, 2017

The concept of what constitutes a serious health condition under the Family and Medical Leave Act (FMLA) prompts many questions. The definition has multiple sections, not all of which apply to any one situation. Some situations, however, might find that more than one part of the definition could apply. Employers still need to figure out, usually from the information in a certification, whether a condition meets the definition. This can be easier said than done.

Case in point

An employee, Meghan, began noticing a painful growth on one of her feet. After seeing a podiatrist, she was given a choice between surgery and conservative care. Meghan chose surgery, which she wanted as soon as possible to alleviate the pain. The surgery was scheduled for 11 days later.

Meghan informed her company of the surgery, but was told that she needed to provide at least 30 days’ advance notice, or her leave would not be protected by the FMLA. The doctor indicated that Meghan needed immediate surgery, even though the condition was not life-threatening. He explained that Meghan’s pain was increasing, her ability to function was decreasing, and the growth could be precancerous. Therefore, he recommended against a delay.

After receiving a certification from the doctor, the employer requested that the surgery be put off for at least 30 days. Meghan, however, had the surgery as scheduled and was terminated for failing to report to work that day.

Meghan filed suit and the district court agreed with the employer that the employee’s condition was not a serious health condition. The employer had argued that Meghan did not meet the requirement regarding multiple treatments. Despite the fact that Meghan had two follow-up appointments with the doctor to have the dressing changed and to have sutures removed, the employer argued that she received treatment only for the actual surgery. After that, her condition was over; therefore, the follow-up treatments were not for the growth, but rather treatment of the wound created by the surgery.

Meghan appealed her case and the circuit court disagreed with the district court and the employer in regard to whether Meghan had a serious health condition. The appeals court indicated that it saw no reason why post-surgical change of dressing and removal of sutures did not qualify as part of the treatment of the condition that occasioned the surgery.

The employer tried to argue that Meghan had worked up to the day of the surgery and indicated that she would have continued to work in spite of the pain had the doctor not provided treatment. The court, however, did not buy that argument. This did not address how long Meghan could have continued working without treatment, had the pain continued to worsen.

Because the appeals court sent the case back for further consideration, it did not address the requirement to provide 30 days’ notice.